Talking Points on the Environment #18

Cleaning Up the Superfund Mess: Five Steps to Recovery

Superfund, hurried through Congress during the final days of the Carter
Administration, was created to force companies to clean up their hazardous
waste sites that threaten the public health. However, Superfund has proven
to be costly and ineffective at cleaning the nation's worst toxic dumps. Over
the past 15 years, expenses have soared to more than $30 billion, while only a
small fraction of the job has been finished.

But Superfund can be more effective and less expensive. Here are the
suggested steps:

Superfund's primary focus should be the immediate danger to public health.
The process of listing toxic waste sites for clean-up unwisely takes into
account hypothetical future risks. Some of the risks considered involve future
homes and playgrounds being built on land that previously was an industrial
waste site. Although this may seem like "forward thinking," it
strays from the primary mission of Superfund -- protecting against the
immediate danger to public health. Nearly one-third of all sites currently
pose no threat to the public. By squandering limited resources on hypothetical
risks, opportunities to save lives are lost.

Appeals should be permitted before mandated clean ups are completed.
Individuals who are forced to clean a site can only appeal the government's
decision after they've completed the clean-up. The current process is unfair
because an individual may be stuck with litigation and clean-up costs even if
they prove that they are not the responsible party. This encourages additional
litigation costs by forcing one party -- the one ordered by the EPA to pay
clean-up costs -- to sue other potentially responsible parties (PRP) for
recovery.

States should play a greater role. The federal government currently
designates Superfund sites without input from state governments. Yet states
can better understand the needs and priorities of local communities, and
therefore should be given the option to have authority over the program.
Listing a Superfund site is not without consequence. When a site is listed,
property values in neighboring communities plummet. For many residents,
calling a dump a Superfund site as opposed to just "the neighborhood dump"
can mean a difference of thousands of dollars for individual home owners.
Allowing states the option to have authority over Superfund will allow
communities to play a role in the decision-making process.

The polluter should pay clean-up costs. Superfund's current liability
scheme ignores the concept of the "polluter-pays," and instead adopts
a witch hunt strategy for the "deepest pocket." A person who may
have contributed a very small amount of waste to a site may be held
accountable for the entire cost of the clean-up because of his ability to pay.
And of course, any person who is identified as "responsible" has the
incentive to prove that other parties are liable, so they aren't left paying
the entire costs. This means even more litigation.

Retroactive liability should be abolished. Holding parties liable to spend
tens of millions of dollars on site clean up for actions that were legal or
standard business practice years ago is not only unfair, but stretches the
constitution to the point of breaking. After-the-fact law and punishment is
forbidden in the U.S. Constitution (Article I, Section 9, Clause 3). In
addition, Superfund's retroactive liability scheme sets the stage for the
costly and continuous litigation that is the chief cause of its failure.
Retroactive liability diverts money from cleaning waste sites to legal teams
filing lawsuits.

Based on information from U.S. Senator Jim Inhofe; John Shanahan of The
Heritage Foundation; Red Tape In America: Stories From the Front Line, by Craig
E. Richardson and Geoff C. Ziebart; Richard Barth of CIBA-Geigy Corporation;
and Maurice R. Greenberg of American International Group.